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4900 Family Violence Protective Orders Against a Perpetrator

APS-IH / February 2009

A family violence protective order is a court order which prohibits a member of a family or household from remaining in the household, and from contacting or coming near the victim. The purpose of the order is to prevent that person from committing further acts of family violence against the victim.

The statutes governing family violence protective orders are set forth in Texas Family Code Chapters 71-87. This order is only available when family violence has been committed by a family member, member of the household, or in some circumstances by a date.

Family violence is defined as:

  •   an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault; or

  •   a threat by a member of a family or household that reasonably places another family or household member in fear of imminent physical harm, bodily injury, assault, or sexual assault.

See Texas Family Code Chapter 71.

In order to obtain a family violence protective order:

  •   an application must be filed with the court;

  ·  citation and notice must be sent to the alleged perpetrator; and

  ·  a hearing must be held.

A temporary restraining order may be requested for the time required to serve notice and have the hearing.

The county or district attorney provides legal representation for any applicant and there is no filing fee. Many county and district attorneys have a designated staff member to work with a person requesting a protective order.

Eye witness evidence of the prior violent acts must be presented at the hearing. This means either the victim testifies or another eye witness testifies.

If a court issues a protective order, law enforcement removes the alleged perpetrator from the home, if the alleged perpetrator is in the residence. However, the victim is the frontline enforcer of the order. The victim must contact law enforcement immediately if the alleged perpetrator violates the order.

4910 APS Specialist Role in Assisting a Client With a Protective Order

APS-IH / February 2009

If it appears that the statutory criteria for the client’s situation are met, the APS specialist explains to the client that a protective order may apply and encourages the client to seek a protective order. If the client is willing to seek a protective order and sign the application, the APS specialist assists the client as needed, such as by helping the client to contact the county or district attorney. If the client is willing to seek a protective order, but unwilling to sign the application for a protective order, the APS specialist may sign the protective order.

If a client is unwilling to seek a protective order, the APS specialist takes no further action related to an application for a protective order.

The APS specialist should be aware that if the home is owned by the alleged perpetrator and not by the client, a protective order may be issued to keep the alleged perpetrator away from the client, but the client will have to move to a different home. A protective order cannot exclude the alleged perpetrator from his or her home in favor of a victim who does not co-own the home. 

Law Enforcement Assistance

On the request of an applicant for a final protective order that excludes a perpetrator from their mutual residence, the court may order a law enforcement officer to:

  •   accompany the applicant to the residence;

  •   inform the perpetrator that the court has ordered that he be excluded from the residence;

  •   protect the applicant while the applicant takes possession of the residence;

  •   protect the applicant while the applicant takes possession of his or her necessary personal property, if the perpetrator refuses to vacate the residence in response to a temporary order; or

  •   remove the perpetrator from the residence and arrest him or her for violating the court order, if the perpetrator refuses to vacate the residence in response to a final order.

See Texas Family Code §86.004.

4920 Protective Order Application Filed by DFPS

APS-IH / February 2009

According to 40 TAC §705.3102, when DFPS staff validate an allegation that a person age 65 or older or an adult with a disability is a victim of family violence as specified in the Texas Family Code §82.002(b)(2), DFPS may apply for a protective order to protect the client.

4930 Procedure for Protective Order Application Filed by DFPS

APS-IH / February 2009

If a client prefers for DFPS to file an application on the client’s behalf, the APS specialist:

  •   discusses with the supervisor and the investigation or exploitation subject matter expert the appropriateness of signing an application for a protective order on behalf of the victim;

  •   obtains supervisory approval before signing the application; and

  •   consults with the regional attorney before signing the application.

The APS specialist must complete the following steps before proceeding with an application for a protective order:

  •   Notify the client and a non-abusive adult member of the household, if available, of the intent to file a protective order. See Human Resources Code (HRC) §54.002.

  •   Request the assistance of the client and the non-abusive adult member of the household to develop a safety plan for the protection of the client and any non-abusive members of the household. See HRC §54.002).

Once these steps have been completed, APS specialist seeks legal representation from the county or criminal district attorney order to file the protective order.

If requested, by the court or criminal district attorney, the APS specialist completes an affidavit related to case findings pertaining to the incident of family violence and testifies at the hearing. The victim may also be asked to complete an affidavit or testify, or both.

The supervisor (or specialist, with supervisory approval) must notify the district director or designee of the potential for legal action.

4940 Documentation for Protective Orders Filed by DFPS

APS IH September 2014

The APS specialist documents:

  •   consultations with their supervisor investigation or exploitation subject matter expert, and regional attorney, in contact detail narratives;

  •   the interviews with the client and any collaterals in contact detail narratives; and

  •   the protective order in the IMPACT Legal Action page.

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